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State v. Tutson

Court of Appeals of Louisiana, Third Circuit

March 7, 2019

STATE OF LOUISIANA
v.
MICHAEL JA'REL TUTSON

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 26305-13 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE.

          Mary Constance Hanes Louisiana Appellate Project, Counsel for Defendant-Appellant: Michael Ja'rel Tutson.

          John Foster DeRosier, Fourteenth Judicial District Court District Attorney Elizabeth Brooks Hollins Ross M. Murray Cynthia Killingsworth Assistant District Attorneys, Counsel for Appellee: State of Louisiana.

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.

          ELIZABETH A. PICKETT, JUDGE.

         FACTS

         On August 29, 2014, Damion Jackson was outside a home peering into a window. That window was in the room where the defendant's mother, the mother's female friend, and the defendant's minor sister slept. When the defendant, Michael Ja'Rel Tutson, saw Jackson looking into the house, the defendant ran after him. Jackson stopped, turned toward the defendant, and took a step toward him. The defendant then shot Jackson. When the weapon jammed, the defendant cleared the jam and shot Jackson again. Jackson was shot three times, once in the neck, back, and left leg.

         The defendant told police he had never seen Jackson before and Jackson had nothing in his hands. Police testified Jackson worked at a fast food restaurant regularly visited by the defendant's sister and mother, and Jackson frequently walked the defendant's sister to the bus stop. However, the defendant's sister denied knowing Jackson.

         The defendant was charged by indictment filed on November 21, 2013, with second degree murder, a violation of La.R.S. 14:30.1.[1] Trial by jury commenced on November 27, 2017, and the jury returned a verdict of guilty of the responsive verdict of manslaughter, a violation of La.R.S. 14:31, on December 4, 2017. The defendant was sentenced on February 23, 2018, to serve forty years at hard labor. A Motion for Appeal and Designation of Record was filed on March 6, 2018, and was granted. The defendant is now before this court asserting two assignments of error: 1)counsel was ineffective for failing to file a motion to reconsider his sentence; and 2)his sentence is excessive.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

         ASSIGNMENTS OF ERROR

         1) Trial counsel rendered ineffective assistance at sentencing in failing to file a motion to reconsider after the trial court imposed the maximum forty-year sentence on Michael Tutson for manslaughter.

         2) Mr. Tutson's forty-year sentence for manslaughter is excessive under the circumstances.

         DISCUSSION

         In his first assignment of error, the defendant contends trial counsel rendered ineffective assistance in failing to file a motion to reconsider after the trial court imposed the maximum forty-year sentence for manslaughter. In his second assignment of error, the defendant contends his forty-year sentence is excessive. We will address these assignments of error collectively.

Louisiana Code of Criminal Procedure Article 881.1 provides:
A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

         Neither defense counsel nor the defendant objected to the sentence imposed at the sentencing hearing or filed a motion to reconsider the defendant's sentence. Thus, under some jurisprudence, the defendant is precluded from appealing his sentence. See State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356; State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59; State v. Duplantis, 13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d 143, writ denied, 14-283 (La. 9/19/14), 148 So.3d 949. This court has, however, previously reviewed claims of excessiveness where no motion to reconsider sentence was filed or objection made, performing a bare excessiveness review. State v. Jackson, 14-9 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, writ denied, 14-1544 (La. 2/27/15), 159 So.3d 1066; State v. Soriano, 15-1006 (La.App. 3 Cir. 6/1/16), 192 So.3d 899, writ ...


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